Trump: “SEE YOU IN COURT” Us: “That Was Court, You Doofus.” Trump’s Choices in a Nutshell

In the wake of the Ninth Circuit Court of Appeals decision, leaving in place the temporary restraining order staying his Muslim travel ban, Mr. Trump has three main procedural choices. First, he can go to the United States Supreme Court and seek to have the stay lifted there. Second, he can skip the SCOTUS appeal from the stay and simply instruct the Department of Justice to prepare and seek to expedite the underlying action on the merits in U.S. District Court for the Western District of Washington. Third, he can moot both proceedings by issuing an executive order revoking the first executive order and announcing that is will be rewritten.

There is opportunity and danger for Mr. Trump in the SCOTUS appeal of the stay. If he goes through with that, there are three possible outcomes, but only two are in the realm of likelihood. First, he might win, but this old lawyer regards that as extremely unlikely, I’d put it at 5-10%. Second, the justices may split evenly, meaning that the stay remains in effect without opinion or precedent from SCOTUS. This may be a good political outcome for Mr. Trump as he can then holler that he was right all along, the Courts are political. I’d rate the chances at 30%. Third, with at least one conservative justice joining the others, Trump loses by majority vote, at least 5-3, possibly 6-2 or 7-1 or even 8-0. I believe there are roughly two chances in three that this will happen, 5-3 or better, a devastating result for Le Grand Orange, particularlyif Chief Justice Roberts writes the opinion for the Court. A unanimous or 7-1 or 6-2 decision with Roberts writing for the Court is almost too delicious to contemplate, as Mr. Trump will throw twitter temper tantrums and do himself irreparable harm. If Attorney General Sessions has a brain (and my friends in Alabama assure me that he does not), Trump will stay away from a SCOTUS appeal on the stay, but I believe he is too compulsive not to bring this appeal.

This will force Mr. Trump either to withdraw the order or to focus on the merits trial in the Western District before Judge Robart, who sees through all this and who Trump has already insulted. A merits fight will include depositions as well as document discovery, and there will be some beauts — Bannon, Conway, Priebus, Miller, intelligence agency chiefs, and more. It is quite possible that he will do both — prepare to fight on the merits at the trial court level, but then at some point, weeks or months from now with the heat off, withdraw the Order, substitute a new one, moot out all these proceedings, and start all over again.

I hope he goes to SCOTUS now, most of all because it will help restore America’s reputation, so badly damaged in the short three weeks of the Trump Administration. I hope he goes to SCOTUS, because the probability is that there will be conservative votes against him, helping uphold the crucial principle of an independent judiciary.